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Villante v. Vandyke

April 21, 2008

DEAN J. VILLANTE, PLAINTIFF,
v.
ROBERT L. VANDYKE, C.O.; AND ROBERT J. HALL, C.O., DEFENDANTS.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff pro se Dean J. Villante ("Villante"), formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two DOCS employees, violated his constitutional rights under the Eighth Amendment when they failed to protect him from an assault by other inmates. Compl. (Docket No. 1). Presently pending is Villante's renewed motion requesting a change of venue to the Southern District of New York. Docket No. 71.

Defendants oppose the motion. Docket No. 73. For the reasons which follow, Villante's motion is denied.

I. Background

At all relevant times, Villante was incarcerated at Marcy Correctional Facility ("Marcy").*fn1 On December 22, 1998, Villante alleges that he was returning from the recreation area along an outside walkway when he and another inmate were attacked by approximately twenty inmates while defendants stood by. Compl. at 2. On June 30, 2004, following his release from DOCS custody,*fn2 Villante filed the instant complaint against defendants in the Northern District of New York. Compl.

Defendants served a notice on Villante for his oral deposition at the office of defendants' counsel in Albany. On March 5, 2005, Villante moved for an order to bar his deposition on the ground that he had been deposed by defendants in a prior proceeding. Docket No. 24. The motion was eventually denied by an order dated March 31, 2005. Docket No. 29 at 2. However, during a conference on the motion, Villante further asserted that he was unable to travel to the Northern District for a deposition because of health problems. Id. at 2. Villante was then directed to file medical evidence regarding this assertion and decision was reserved as to whether Villante's deposition would take place in the Northern District or in New York City. Id. On May 19, 2005, defendants moved for an order compelling the deposition of Villante. Docket Nos. 31, 34. In an order dated May 31, 2005, defendants' motion was granted but that the deposition take place on June 14, 2005 in New York City. Docket No. 36 at ¶ 1. Additionally, the order directed that the medical evidence submitted by Villante remain sealed. Id. at ¶ 5.

On or about December 6, 2005, Villante moved to transfer this case to the Southern District of New York due to his deteriorating health. Docket No. 54. Before that motion was decided, defendants filed a motion for summary judgment. Docket No. 56. In an order dated May 9, 2006, Villante's motion to change venue was denied, without prejudice to renewal after defendants' motion for summary judgment was decided. Docket No. 61 at 2. In an order dated January 15, 2008, defendants' motion for summary judgment was granted in part and denied in part. Docket No. 70 at 7-8. This motion followed. On February 7, 2008, the parties participated in a teleconference, Villante again requested a transfer of venue to the Southern District because of his health, defendants opposed the request, defendants requested that they be granted access to Villante's previously sealed medical records filed in connection with Villante's deposition (Docket No. 38), and defendants' request was granted to permit defendants to review the records and submit a response to Villante's motion. Docket No. 72.

Attached to Villante's motion were, inter alia, letters submitted on his behalf by two treating physicians and a Social Security decision finding that Villante was entitled to disability benefits. Dr. Maritza Brown, who treats Villante for chronic kidney disease, stated that "[t]raveling at this time is not advisable given the extent of [his] . . . complications."

Docket No. 75 at 14. Dr. Joshua Aron, who treats the chronic viral hepatitis in Villante's liver, stated that "[g]iven his multiple medical problems, [Aron] would not recommend active travel at this time." Id. at 15. The Social Security decision dated March 28, 2005 stated that Villante suffered from severe chronic renal failure, was limited to sedentary work with substantial exertional limitations, and was disabled from employment. Id. at 24.

On February 12, 2008, defendants contacted Drs. Brown and Aron. Kinsey Aff. at ¶¶ 19-27. Dr. Brown clarified her letter, explaining that (1) "[Villante] is not undergoing dialysis or any treatment that requires daily medical intervention or oversight," (2) Villante is "monitor[ed by Dr. Brown] every two to three weeks and that extended travel that might interrupt that schedule would not be appropriate . . . .," (3) a two or three day trip to Albany for litigation purposes "would not adversely affect [Villante] or his treatment," and (4) "the actual travel [to Albany] would not adversely affect [Villante] in any way but an extended absence from monitoring would be contraindicated." Id. at ¶¶ 22-26 (emphasis added). Dr. Aron stated that he "sees [Villante] approximately once every three months . . . and that his condition would not be adversely affected by travel to Albany; [however,] an extended absence due to travel would not be advisable." Id. at ¶¶ 20-21 (emphasis added).

II. Discussion

Villante asserts that due to his health concerns, the interests of justice and convenience compel transfer of the case to the Southern District. Defendants contend that Villante (1) has not presented sufficient evidence to warrant reconsideration of the previous order denying the change of venue,*fn3 and (2) is not entitled to a change in venue in any event.

Unless otherwise provided, the venue for a civil action is properly in "a judicial district where any defendant resides, if all defendants reside in the same state" or in "a judicial district in which a substantial part of the events . . . giving rise to the claim occurred . . . ." 28 U.S.C. § 1391(b). Suits, as here, seeking recovery under 42 U.S.C. § 1983 are governed by these provisions. See Bunn v. Gleason, 462 F. Supp. 2d 317, 319 (D. Conn. 2006) (applying § 1391(b) to a § 1983 action). However, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). Thus, motions to transfer venue are subject to "a two-part test: (1) whether the action to be transferred might have been brought in the transferee venue; and (2) whether the balance of convenience and justice favors transfer." Rescuecom Corp. v. Chumley, 522 F. Supp. 2d 429, 448 (N.D.N.Y. 2007).

The decision to transfer a case "is committed to the sound discretion of the court." Dixon v. Fischer, No. 9:07-CV-1157 (DNH)(DRH), 2008 WL 141786, at *1 (N.D.N.Y. Jan. 11, 2008) (citations omitted). In determining the first prong of the analysis, "the court must first decide whether . . . venue [in the transferee forum] was proper . . . at the time that the suit was initiated." Id. (citations omitted). Determination of the second prong requires a court to consider (1) the convenience of witnesses; (2) the convenience of the parties; (3) the location of relevant documents and the relative ease of access to those sources of proof; (4) the situs of the operative events in issue; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) judicial efficiency and the interests of justice Rescuecom Corps., 522 F. Supp. 2d at 449 (citations omitted). It is the movant's burden to "establish that a change of venue is warranted; "therefore, it is his or her responsibility "to establish ...


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